Member Of Joint Hindu Family Can Acquire Separate Property From Own Funds; Other Coparceners Can't Claim Interest: Allahabad High Court
The Allahabad High Court has held that the mere existence of a joint Hindu family does not raise presumption that a particular holding is a joint family property. It held that a member of a joint Hindu family can acquire and hold property exclusively in his own name. It held that other members cannot be granted co-tenancy rights over such a holding unless they prove that it was acquired from...
The Allahabad High Court has held that the mere existence of a joint Hindu family does not raise presumption that a particular holding is a joint family property.
It held that a member of a joint Hindu family can acquire and hold property exclusively in his own name. It held that other members cannot be granted co-tenancy rights over such a holding unless they prove that it was acquired from a joint family nucleus.
The dispute concerned three plots of khata no. 277 in village Baro, District Basti, recorded in the basic year of consolidation operation exclusively in the name of the petitioners, who are the sons of one Chetai, as Sirdar.
Respondent nos. 2 and 3, Jaglal and Faujdar, brothers of Chetai, filed an objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953, seeking to be recorded as co-tenure holders. They claimed that the holding had originally been acquired by Ghirau. It was recorded in the name of his widow Smt. Jhinka @ Chhotka after his death, and on her death succeeded jointly by Chetai, Jaglal and Faujdar, but wrongly entered in Chetai's name alone.
Petitioners, who are Chetai's heirs, submitted that the holding was a new one, acquired by Chetai exclusively after separation had taken place between him and his brothers. It was submitted that there was no identity or continuity with any holding of Smt. Jhinka, and that there was no pleading of joint acquisition from any joint family fund.
The Consolidation Officer allowed the objection on 30.5.1978, recording respondent nos. 2 and 3 as co-tenure holders with a one-third share each, on the view that Chetai's name had been entered as Karta Khandan. On appeal under Section 11(1) of the Act, the Assistant Settlement Officer of Consolidation set aside that order and directed that the khata be recorded in the petitioners' names exclusively, finding that there was no continuity or identity of the revenue entry and that the settlement had been made in Chetai's favour after the family had separated.
The Deputy Director of Consolidation allowed the revision filed by respondent nos. 2 and 3 under Section 48 of the Act, set aside the appellate order and restored the order of the Consolidation Officer. The petitioners approached the High Court against the revisional order.
Justice Chandra Kumar Rai held,
“The finding of fact has also been recorded by appellate court that after separation of family, the settlement was made in favour of petitioners' father Chetai, as such it cannot be said that the name of Chetai was recorded as Karta Khandan.”
The Court held that the appellate authority's findings of fact, based on the revenue entry, the duration recorded in the khatauni and the absence of continuity and identity of the entry, had not been reversed in proper manner by the Deputy Director of Consolidation. It noted that the revisional order had recorded the duration of the entry in 1348 Fasli as one year, whereas the khatauni of 1348 Fasli annexed to the writ petition showed the duration as nine years. It held that the revisional order could not be sustained on this ground.
The Court further held that the revisional power available to the Deputy Director of Consolidation in 1979 was a limited one.
“in the year 1979, the Deputy Director of Consolidation was having limited jurisdiction under section 48 of U.P.C.H. Act, as section 48 of U.P.C.H. Act was amended giving wider power with effect from 10.11.1980”
The Court relied on Ram Chandra Dubey and another vs. Deputy Director of Consolidation, Deoria and others, wherein the Allahabad High Court held that a member of a joint Hindu family, even if joint, can possess separate property which belongs exclusively to him and in which no member of the coparcenary can acquire any interest.
It further relied on Bala Charan and others Vs. State of Uttar Pradesh and others, where the Allahabad High Court held that while there can be a presumption of a joint family, there can be no presumption of joint family property.
Applying these decisions, the Court held that the burden lay on respondent nos. 2 and 3 to prove that the disputed holding had been acquired from a joint family nucleus, which they had failed to discharge, and that co-tenancy could not therefore be granted to them.
Allowing the writ petition, the Court set aside the revisional order dated 17.8.1979 and maintained the appellate order dated 29.12.1978. No order was made as to costs.
Case Title: Pardeshi v. D.D.C and others 2026 LiveLaw (AB) 435
Case Citation: 2026 LiveLaw (AB) 435
Counsel for Petitioner :- Shashi Prakash Misra
Counsel for Respondent :- Amit Kumar Singh, Rama Nand Pandey